Former SolGen and retired SC Assoc Justice Francis Jardeleza | The Source - video Dailymotion

CNN Philippines

Manila and Tokyo set to boost ties as Japanese Prime Minister Fumio Kishida begins his official visit to the Philippines today.   And the Foreign Affairs department criticizes China for accusing the Philippines of trespassing near Bajo de Masinloc.   It says China is the one intruding in Philippine waters and its claim only serves to raise tensions in the West Philippine Sea.  Can the government take any legal action against China?   Former Solicitor General and retired Supreme Court Associate Justice Francis Jardeleza joins us live in the show.  Visit our website for more #NewsYouCanTrust: https://www.cnnphilippines.com/  Follow our social media pages:  • Facebook: https://www.facebook.com/CNNPhilippines • Instagram: https://www.instagram.com/cnnphilippines/ • Twitter: https://twitter.com/cnnphilippines

Transcript

00:00 Welcome to The Source where we combine the headlines with in-depth conversations with

00:06 the newsmakers themselves. I'm Pinky Webb. Today on the program, Manila and Tokyo set

00:11 to boost ties as Japanese Prime Minister Fumio Kishida begins his official visit to the Philippines

00:16 today. And the Foreign Affairs Department criticizes China for accusing the Philippines

00:21 of trespassing near Bajo de Masinloc. It says China is the one intruding in Philippine waters

00:28 and its claim only serves to raise tension in the West Philippine Sea. And we also get

00:34 to know the country's possible legal options against Beijing. Former Solicitor General

00:39 and retired Supreme Court Associate Justice Francis Har-Deleza joins us live in the studio.

00:46 And the country is welcoming Japanese Prime Minister Fumio Kishida today as he is set

01:12 to begin his two-day official visit. Kishida and President Bongo Marcos are expected to

01:17 tackle defense cooperation in the West Philippine Sea and iron out a potential deal similar

01:22 to Manila's visiting forces agreement with Washington. His trip comes on the heels of

01:27 the exchange of criticisms between the Philippines and China after the Foreign Affairs Department

01:31 refuted China's territorial claims in Bajo de Masinloc. The Marcos administration reiterated

01:37 it does not need Chinese permission to operate in Philippine waters and China is the one

01:42 in fact flaring tensions by intruding in the West Philippine Sea. The Justice Department

01:47 previously said the Philippine government is studying its next legal steps against China.

01:54 Let's go straight to the source of the story. We have former Solicitor General and retired

01:58 Supreme Court Associate Justice Francis Har-Deleza. Justice, it's so good to see you again.

02:03 Good morning, Tinky.

02:04 Retired but not tired.

02:06 Yes.

02:06 As they say. Let's start with first, this is very important because I again watched

02:13 the documentary on Beyond the Horizon and very important of course is Bajo de Masinloc.

02:20 Yes.

02:21 Tell us, Justice, what exactly was the ruling of the Arbitral Tribunal with regards to Bajo

02:28 de Masinloc?

02:30 The tribunal said very clearly that Bajo de Masinloc is within our EEC. Therefore,

02:37 it is within our jurisdiction. Now, springing from that, we have all the rights, sovereign

02:45 rights over Bajo de Masinloc.

02:48 Very clear. It's within the Philippines 200 nautical mile exclusive economic zone.

02:55 So Justice, what should be done? They are saying we are intruding. We are saying no,

03:01 you are intruding.

03:02 Well, there is so much to be done with Bajo de Masinloc but unfortunately the Chinese

03:09 vessels, the Chinese Coast Guard vessels and the Chinese militia vessels are there. Now,

03:22 with respect to the military interference of the Chinese, there's not much legal recourse

03:29 that we can have. So we will have to do it the way that we're doing it today. We have

03:38 our Coast Guard, our Navy trying to run interference with their interference.

03:48 The presence of the Chinese Coast Guard in the Philippines exclusive economic zone, not

03:55 just the Chinese Coast Guard, Justice, but also the Chinese maritime militia. What can

04:02 we do and is there a way to be able to get them out? Why? Because even in the ruling,

04:09 rather in that Beyond the Horizon documentary, which I believe a lot of people should actually

04:16 watch, is that you were saying that there is definitely freedom of navigation but you

04:22 are not supposed to stay still in those waters, which they have done. So is there any case

04:29 or anything, any move that can be done to tell them they can't be hanging out there

04:34 and anchoring there for days or even weeks?

04:38 Unfortunately, Pinky, the international law, we have all the rights but we have no so-called

04:45 international policeman. There is no somebody there to say, "You get out of this place

04:51 if you have no right." That is where we are. We have all the rights but if a naval

04:57 presence is there, we cannot just take the law into our own hands. That is why this standoff

05:03 will continue for some time, I'm afraid.

05:07 Because no one will enforce this, to which, going back, Justice, I think it's also good

05:12 to note that way back, the late President Anoy Inoy Aquino had asked that question.

05:18 When you, together with the team, were going to file this case before the Permanent Court

05:22 of Arbitration, he said, "Why should I do this?" the late President said, "Why should

05:29 the government spend so much money when it cannot be enforced?" Because you had warned

05:34 him back then that there would be no enforcement in the event that we win. And to that, you

05:39 answered?

05:40 The thing, Pinky, is in law, there is such a thing as you clarify first what are your

05:47 rights and then you enforce your rights. What we did was one step at a time. We had to clarify

05:55 our rights. Who owns the seas around the Masinlok? Who can be there? That's a matter of law.

06:06 Now, of course, we knew that in international law, if we win that point, we cannot enforce

06:13 it. But that's already half the battle. So we filed a case to clarify our rights. To

06:20 clarify our rights. Because you think of it, Pinky, had we not filed a case, had we not

06:27 filed a case, up to now, China will say, "Oh, we have a right to be there." So it's a matter

06:33 of press releases. But now, at least we have the clarification of law. That's what we told

06:41 President Aquino.

06:43 But wasn't it, isn't it also true, please correct me if I'm wrong, sir, is that when

06:47 it comes to the term, I guess, ownership, it wasn't the PCA, the Arbitral Tribunal,

06:56 that actually classified who owned who? And I believe there is another court for this

07:03 which should be the International Court of Justice, is that correct, sir?

07:07 Yes, yes.

07:08 And please expound.

07:09 Yes. In international law, Pinky, who owns territory belongs to the jurisdiction of the

07:17 International Court of Justice, the ICJ. Who owns territory? Who owns Bajo de Masinlo?

07:25 So the problem there is for a court to acquire jurisdiction over that issue, the two parties,

07:38 the Philippines and China, must consent. And the problem is China will never consent because

07:44 we know that if we go to court over who owns a certain part of the territory, for example,

07:52 Masinlo, we know that we are strong. We have all the evidence. So they refuse to join.

07:58 Now that is why we filed a case over the UNCLOS. We just filed a case not over the land itself,

08:07 Bajo de Masinlo, but over the oceans.

08:10 The features.

08:11 No, no, not even the feature, Pinky, is the Bajo de Masinlo is a feature. That's a land

08:17 mass, a small land mass. Now, you cannot have a case before the UNCLOS on who owns the small

08:26 features that belongs to the ICJ, where China has to consent to jurisdiction. But on the

08:33 oceans, the sea, the sea around the feature, that belongs to the jurisdiction of UNCLOS,

08:43 a treaty where China has agreed to be bound by compulsory jurisdiction.

08:50 By UNCLOS.

08:51 By UNCLOS.

08:52 Okay, so is it right to say, Justice, that the PCA talked about the waters?

08:57 The waters.

08:58 But if you talk about owning actual features or land, that will be the International Court

09:05 of Justice.

09:06 Yes.

09:07 So here's a question, sir. Is it futile to bring this before the ICJ because we know

09:11 that China will not participate?

09:13 Yes, so to bring a case over ownership of territory, yes, in my view it is futile. That

09:20 is why years ago we did not resort to that.

09:24 But that's exactly what also China did with the PCA. They refused to participate in the

09:30 proceedings.

09:31 This is now where we are. So they refused to participate when we brought the case several

09:38 years ago.

09:39 Twenty-seven.

09:40 So we won the case. We won the case over the waters. Now, what I am saying now, and what

09:45 the Secretary of Justice is saying, is we file a new case, like a second part to what

09:51 we filed.

09:52 Okay.

09:53 But it is about the environmental degradation that China did to the waters, just the waters.

10:00 Yeah, still talking about the waters.

10:02 Yes, yes.

10:03 Let's discuss that because it was DOJ Secretary Boeing Rimula, although this was even discussed

10:08 a few months ago, said he met with you, and a few others regarding what possible moves

10:14 the government can do with regards to, we're talking about an environmental case against

10:21 the harvesting, the massive harvesting of corals in the West Philippine Sea. In other

10:27 words, these are corals which are part of the 200 nautical mile already ruled by the

10:34 Philippine Court of Arbitration. What are your thoughts on this, and where should a

10:40 case be filed?

10:41 Well, first, we can file, we should file a case to build on what we have already won.

10:48 For example, Mischief Reef is within our 200 nautical miles. They built structures there.

10:58 The tribunal very clearly said there is damage to the environment. The only thing is we did

11:08 not quantify how much is the damage. So the logical thing to do now is to file a case,

11:15 quantify the damage, and then seek damages, as in monetary damages against China. Now,

11:23 this is not a perfect word. That means we cannot get back Mischief Reef unless we have

11:29 a powerful navy where we can throw them out. But we have to deal with the cards we are

11:36 dealt with. We have this remedy of going against China based on what we won. We can have monetary

11:45 damages for what they did to Mischief Reef.

11:48 Very quickly, though, but when you say what we won, that's coming from the, obviously,

11:52 the PCA ruling. Are you saying file a supplemental case with regards to environmental damage,

11:59 or file an independent case with the same tribunal?

12:03 It is going to be, I think, that's going to be threshed out by the team. But it's basically,

12:10 I think, still with the PCA, whether it is a new case, it is definitely a new case, we

12:17 have to make a new filing. But we are not going to file as in it's a clear slate. We're

12:24 going to file pointing to the previous case. That's what we call, the lawyers call, the

12:30 law of the case. There is already a previous case. So we are building on a win.

12:35 What is it called? The law of the case?

12:36 The law of the case.

12:37 That's what possibly the Philippines will do. We just need to take a very short break.

12:42 This is The Source on CNN Philippines. Please stay tuned.

12:51 You're watching The Source on CNN Philippines. I'm Pinky Webb. Our source today, former Solicitor

12:55 General and retired Supreme Court Associate Justice Francis Hardaleza. So build on a case

13:01 that we earlier won with the PCA, which you call the law of the case. Do we have justice?

13:08 Because this will be, we will be paid, supposed to be. We will ask for damages from the environmental

13:16 degradation. Do you already, were you able to talk about how much we should be seeking

13:24 in terms of damages?

13:25 No, no, not yet, Pinky. My opinion I've given to Secretary Mulya is we should have done

13:33 the preparations yesterday. Because number one, you have to get our experts to say how

13:38 much was damaged. For example, Mischief Reef. With China building so many structures there,

13:46 how much damage to the reefs? How much damage to the fishes? I'm just talking of Mischief

13:52 Reef. Now, you need scientists. So I told him that the Filipino scientists are very

13:58 good. They're very good scientists. I know some of them have made preliminary studies.

14:05 But you need, in a court case, you cannot just have all Filipinos as your witnesses.

14:11 You need experts. So you need, kailang kamata mo pa, you have to get these experts. And

14:15 then they will have to come to a figure which will be credible, which you can support in

14:22 court. And then once you get the figure, you have to give the evidence. And then once,

14:28 hopefully, we win, you file now what is called, how do we enforce it? Because the next question

14:35 is if China will not pay.

14:39 There is a treaty called the New York Convention. The New York Convention means that once you

14:47 win in a country, you can go to another country to enforce the judgment. For example, the

14:56 best case will be a Filipina marries a Japanese in Japan and then takes a divorce, files a

15:07 case in Japan for divorce. It takes a lot of money to prosecute a case in Japan. The

15:15 Filipina now is not required to go back to the Philippines and to refile the whole case.

15:20 She will get the judgment in Japan, get evidence of the win in Japan, and bring it to a Philippine

15:28 court.

15:29 Apply it here. Submit rather.

15:30 Submit. There is a convention. There is a treaty again. It's called the New York Convention.

15:36 And how does that, for example, apply in the event that we win and China refuses to pay?

15:41 You remember the case of, the recent case of the claim on Saba? Remember there was a

15:48 Filipino group and heirs of Sulu? They filed a case in, I think, in Spain. Now they were

15:56 very smart. They did not file a case against Malaysia for ownership. They just filed a

16:05 case for an increase of rent. But see, the evidence was in, I don't know, a long time

16:11 ago the rent was only so much. But now, with experts, the rent now is mind-boggling. And

16:18 then when they won the case in Spain, they went to France to enforce it. They were using

16:26 the so-called New York Convention. But unfortunately, well, first I think what happened, Malaysia

16:33 did not mind the case in Spain. So, they didn't, but then they were called the enforcement

16:42 case. Now, the case was thrown out. It was thrown out in France because of technicalities.

16:48 But if we have a strong case, we have a strong case, we have good lawyers, and then you file

16:55 a case that has no loophole because under the New York Convention, there are again defenses.

16:59 You have to file a case. Now, for example, if you file, if we win, where do we file a

17:05 case? Now, definitely I will not recommend that we file a case in Manila because we will

17:11 be in trouble here in Manila. And then there's a tactical reason. If you file the case in

17:16 Manila, it will be a Manila court. So, you file it in a financial center like New York.

17:22 I see. All right. Justice, we just need to take a short break. We will be right back.

17:29 You're watching The Source on CNN Philippines. I'm Pinky Webb. Our source today, former

17:39 Solicitor General and retired Supreme Court Associate Justice Francis Hardeleza. In summary,

17:44 Justice, what should be done? Like what you were saying during the break so that you can

17:50 explain it better. I think, Pinky, as I have expressed to Secretary

17:56 Remulia, we needed to be ready yesterday. We need first, the most important thing is

18:02 to get the mandate of the President to decide. It's a political decision to file a case because

18:10 if the President does not agree to file a case, nobody can file a case. No private party

18:17 can go to the unclosed. The President, of course, being the chief

18:21 architect of foreign policy. Yes. Okay. So, did Secretary Remulia say, "We have

18:27 the President's go signal," or was it like during the Aquino administration when he ordered

18:33 and he asked, "Bakito Ochoa, ES called you," and said, "Pag-aralan natin 'to,"

18:40 together with the DFA, Albert Dalet, Albert Del Rosario, et cetera, and then we move forward.

18:46 Where are we right now? Well, I think after my talk with Secretary

18:51 Remulia, when Secretary Remulia said, "He has the mandate of the President," now I

18:56 checked with Executive Secretary Bersamin and Secretary of Defense Tudoro, and they

19:06 confirmed to me that indeed Secretary Remulia has the mandate of the President.

19:11 So, I think that I'm just waiting for what will happen next, but I think we are on the

19:17 right track. Okay.

19:18 But, as I told Secretary Remulia, do it very fast.

19:21 Okay. Because Secretary Remulia has to consult

19:25 with experts, the Filipino. We have to do it. We have to do it. For example—

19:31 And we have to have the budget for it, sir. Well, the budget will not be a problem because

19:35 in the time of President Aquino, he took it from one of the presidential funds,

19:41 from the contingent funds. You don't need Congress to appropriate, especially if we

19:51 get Filipino councils. We have the OSG, we have the lawyers of the Secretary of Justice.

19:59 So, no more foreign lawyers? No, I think the

20:04 Secretary—Executive Secretary Bersamin has told me that that is not yet decided because

20:10 this is such a big thing. I will argue that no more foreign lawyers, meaning the lawyers

20:17 to argue should not be paid, meaning we can get consultants. We definitely need all the

20:26 help that we need. We need consultants, but consultants, Pinky,

20:31 iba sa mag-argue, mag-akamada ng case. Now, we need to pay the experts, the experts—because

20:39 this is a case for damages now. Very critical, the credibility of the experts.

20:45 Here's a question, Justice. There was a suggestion to use Sea of Asia. Did you agree?

20:53 I agree. That is a suggestion of Attorney Tony Oposa. I have no problem with that. I fully

21:05 endorse the Sea of Asia. Why? Because the tribunal's award to us—why do I talk strongly

21:13 about a case over Mischief Reef? Because that's included in the tribunal's award. Now, but

21:22 beyond Mischief Reef, there are six other reefs which the tribunal said were subject

21:29 of degradation by China. And these six reefs, Pinky, are outside our EEC. This is where

21:37 perfectly the idea of Tony Oposa comes in. Sea of Asia.

21:41 Sea of Asia. Because there are other areas that are not

21:45 part of the 200 nautical miles I see. Yes, yes. That's perfectly—but I hear a

21:50 lot of brickbrats from fellow Filipino lawyers against it. But this is a time where we have

21:58 to pull together all the minds of the Filipinos. But Justice, why not still call it West Philippine

22:06 Sea and Sea of Asia? Or would that be confusing? Because I guess there's that mindset that

22:12 if you call it Sea of Asia and not West Philippine Sea, and a part of it really is the West Philippine

22:18 Sea, it's almost like diluting the West Philippine Sea win in the PCA ruling in 2016.

22:26 Because there's something here that I wanted to share, which came again from that documentary.

22:34 But from the finding that certain areas—this is the PCA ruling—are within the exclusive

22:40 economies, none of the—exclusive economic zone of the Philippines, China had violated

22:48 A, by interfering with Philippine fishing and petroleum exploration; B, constructing

22:55 artificial islands; C, failing to prevent Chinese fishermen from fishing the zone. They

23:00 already said it in the ruling that we won in 2016. So why not still use West Philippine

23:07 Sea? I'm saying, Pinky, we still use West Philippine

23:11 Sea with respect to that ruling. But I'm calling attention that the ruling included

23:16 not only what you read, it included six other reefs outside our EEC. These are not technically

23:23 within the West Philippine Sea. That is why, even if you don't use the terminology being

23:30 suggested by Tony Opoza, we still claim that China has to pay for all of the six other

23:40 reefs outside our EEC. Now, why not call it Sea of Asia? You need that terminology. Parang

23:49 diskarte. Why not West Philippine Sea and beyond?

24:00 West Philippine Sea and South China Sea. Now, there is a reason why—and I agree with

24:06 Tony Opoza—you have to win the neighboring countries slowly. Because I'm not even sure

24:14 that if we get damages over the six, the dollar damage will go to us. It might go to a trust

24:24 fund for these other countries. So we cannot be parochial about this.

24:31 And I guess you don't—could you possibly lose—if you lose, or if we lose, you could

24:38 lose on technicality because there are other areas here which are actually not part of

24:42 the West Philippine Sea, I guess? I don't think we can lose on technicality

24:48 because we have been over that in the first case. The fact that there are other countries

24:54 that did not join us. The tribunal did not take it as a good argument.

25:02 So Justice Sori, there's still one very important question that needs to be asked here. When

25:10 should we file the case? How soon should government decide on this?

25:16 My advice to—my position to Secretary Mulya is we should have prepared yesterday. We should

25:23 file as soon as possible time that we are ready. We have to be ready. We cannot just

25:29 say we filed today and we haven't even— How long do you think it will take till we're

25:34 ready? I think it will take a couple of months at

25:37 least. We cannot file today because we haven't even formed our team yet. Again, in a case,

25:45 you need only one team. You cannot run a litigation by committee. That's what we have learned.

25:52 That's what we have learned in the past. And when you have one team, you still have

25:57 that team to bring this to the president, to which the president will make that decision

26:03 to give you the go signal or not. But when the team goes to the president, they

26:08 have to be ready with who are the witnesses, who are going to speak.

26:13 What's the evidence? The evidence, Pinky, is very important.

26:18 All right. We'll continue to monitor what will happen. I know that Secretary Mulya also

26:23 said that possibly early next year, but I'm sure it's not as easy as we think. And this

26:30 needs to be very well thought of. Former Solicitor General and retired Supreme Court Associate

26:36 Justice Francis Hardilez. Sir, so good to see you. I hope to speak to you again when

26:41 this progresses. And take care of yourself. Thank you.

26:44 And thank you for joining us here on The Source. I'm Pinky Webb. You're watching CNN Philippines.

26:48 [MUSIC PLAYING]

26:51 [MUSIC PLAYING]

26:55 (explosion)

Former SolGen and retired SC Assoc Justice Francis Jardeleza | The Source

Category

Transcript

Recommended